Legal actions against NGOs and volunteers involved in search and rescue at sea based on domestic criminal or administrative law must be implemented in accordance with the relevant international, Council of Europe and EU fundamental rights law and refugee law standards. This requires making the delicate distinctions between real smugglers and those enforcing the human rights imperative of saving lives at sea, either by acting out of humanitarian considerations and/or by following international obligations for rescue at sea. National authorities and courts need to find a right balance between applicable international and EU law, and national law, as complemented by non-legally binding guidance, such as the Italian Code of Conduct and similar domestic instructions. The 2017 UNHCR guidance on search and rescue operations at sea, including the non-penalisation of those taking part in these activities, gives useful guidance in this regard.
The note provides an overview of recent criminal investigations in Greece, Italy and Malta against NGOs owning these search and rescue ships and/or against individual crew members. It draws on past FRA materials on the non-criminalisation of persons engaging with migrants in an irregular situation for humanitarian reasons. A 2014 FRA paper recommended that European Union (EU) Member States should implement the Facilitation Directive (Directive 2002/90/EC) in a fundamental rights compliant manner, and practical guidance should be developed for this purpose. The paper emphasised that such guidance needs to explicitly exclude punishment for humanitarian assistance ‘at entry’ to the EU of migrants in an irregular situation, including when rescuing at sea.
Recent EU policy developments have brought this issue again to the forefront, as activities to implement the EU Action Plan against migrant smuggling (2015-2020) continued and intensified. In March 2017, the European Commission published its evaluation of the Facilitation Directive and Council Framework Decision 2002/946/JHA. It concluded that there is no need to revise the EU facilitation acquis, but clearly acknowledged that some actors, including civil society organisations involved in search and rescue operations at sea, perceive a risk of criminalisation of humanitarian assistance.